State v. Dye, 66549–9–I.

• Decision Date: 27 August 2012
• Docket Number: No. 66549–9–I.,66549–9–I.
• Citation: 283 P.3d 1130
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Timothy Lee DYE, Appellant.

283 P.3d 1130

STATE of Washington, Respondent,

v.Timothy Lee DYE, Appellant.

No. 66549–9–I.

Court of Appeals of Washington,

Division 1.

Aug. 27, 2012.

Lila Silverstein, WA Appellate Project, Jan Trasen, Attorney at Law, Seattle, WA, for Appellant.

Andrea Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

ELLINGTON, J.

¶ 1 Timothy Dye's right to a fair trial was not violated when the court allowed Ellie, the King County Prosecutor's Office “facility dog,” to sit next to the developmentally disabled adult victim as he testified. Nor did the court improperly seat an alternate juror without first verifying the alternate's impartiality. We find no error, and affirm Dye's conviction for residential burglary.

BACKGROUND

¶ 2 Douglas Lare is an adult man with significant developmental disabilities. ¹ Although he lives independently and has a job, he functions at the level of a child.

¶ 3 In 2006 or 2007, Lare met Alesha Lair, who eventually became his “girlfriend.” ² Alesha, her sister, her mother, and her mother's boyfriend moved into Lare's apartment in spring of 2007. Alesha used Lare's money and credit to buy numerous items, including a car. She convinced Lare to take $59,000 from his retirement account. She opened several credit cards in Lare's name and charged the maximum on each, incurring approximately $42,000 in credit card debt.³ Alesha's mother and her boyfriend moved out of Lare's apartment in fall of 2007, and Alesha moved out shortly afterward. ⁴

¶ 4 Unbeknownst to Lare, Alesha had another boyfriend named Timothy Dye. After she moved out, Alesha rented an apartment for Dye and herself, which she furnished with Lare's money.

¶ 5 Lare discovered that a portable DVD player and a DVD were missing from his bedroom. Several days later, on January 24, 2008, Lare awoke to find Dye in his home, rummaging through his belongings. Dye asked if he could take Lare's DVD player and VCR. Lare said no. Dye nonetheless took DVDs and a shelving unit. Lare reported both incidents to the police.

¶ 6 The next day, Lare returned from work to find his front door propped open. Several items had been stolen from his apartment, including a large television, VCR, DVD player, microwave, and a collectable “bulldog” knife. He reported this to the police as well. Lare became very fearful. He testified he now has three locks on his front door and sleeps with mace, a frying pan, and two knives.

¶ 7 The State charged Dye with residential burglary and alleged that Lare was a particularly vulnerable victim. Alesha pleaded guilty to theft in the first degree with a vulnerable victim aggravator.

¶ 8 Before Dye's trial, the State sought permission for a dog named Ellie to sit with Lare during his testimony. Ellie is the King County Prosecutor's Office facility dog.⁵ The court granted the motion over Dye's objection. The court instructed the jury to disregard the dog's presence.

¶ 9 Shortly after the jury began its deliberations, defense counsel notified the court that Dye had had inadvertent contact with one of the jurors during trial. The court replaced the juror with the alternate, who had been instructed not to discuss the case before being briefly excused, and instructed the jury to begin deliberations anew.

¶ 10 The jury found Dye guilty of residential burglary, but answered “no” on the special verdict for the vulnerable victim aggravator.

DISCUSSION

Presence of Facility Dog During Testimony

¶ 11 In a pretrial motion, the State represented that Lare “is experiencing significant anxiety regarding his upcoming testimony,” which diminished when Lare was with Ellie, and therefore “requested that Ellie be with him during his testimony.” ⁶ The State relied upon the court's discretion to control courtroom proceedings and witness examination under ER 611, and upon State v. Hakimi, in which we upheld a trial court's decision to allow child victims of sexual abuse to hold dolls while testifying. ⁷ “Similarly here, because Douglas functions at the level of a child and is fearful of the defendant, the State asks that he be allowed to have the dog present.” ⁸

¶ 12 The defense objected, contending the dog would distract the jury, aggravate Dye's allergies, and cause extreme prejudice. The court offered to make any appropriate accommodations for the allergies, but granted the State's motion.

¶ 13 Dye contends that Ellie's presence deprived him of a fair trial by interfering with his right to confront Lare, by improperly inciting the jury's sympathy and encouraging the jury to infer Lare's victimhood, and by giving Lare an incentive to testify in the prosecution's favor. Additionally, Dye contends there was no proper foundation for the request and that the court violated GR 33 by allowing Lare to sit with a facility dog without making necessary findings for accommodation under GR 33, the Americans with Disabilities Act, Title 42 U.S.C. chapter 126, or the Washington Law Against Discrimination, chapter 49.60 RCW.

¶ 14 We address the last arguments first. GR 33 and the antidiscrimination statutes to which Dye refers have no application here. GR 33 establishes a procedure by which persons with disabilities may request accommodation as mandated by the statutes. No request was made under GR 33, Dye's objection was not made on that basis, and the rule does not establish an exclusive, mandatory procedure. Further, GR 33 requires findings only when a requested accommodation is denied.⁹

¶ 15 For his argument that Ellie's presence interfered with his right to cross-examine Lare, Dye relies on Coy v. Iowa, in which the United States Supreme Court held that a screen placed between the defendant and the complaining witnesses interfered with the defendant's Sixth Amendment right to “face-to-face confrontation.” ¹⁰Coy emphasized the special character of the right to literal face-to-face confrontation, and distinguished it from the right to conduct cross-examination.¹¹ The court noted that while that right is “not absolute, and may give way to other important interests[,]” the absence of “individualized findings that these particular witnesses needed special protection” precluded the conclusion that an exception was appropriate.¹² Dye contends the court's failure to make a finding of necessity in this case similarly violated his right to a fair trial.

¶ 16 We disagree. Dye's argument depends on the notion that Ellie effectively screened Lare from Dye. But Dye does not allege the dog's presence prevented him from face-to-face confrontation with Lare. Coy is inapposite.

¶ 17 Dye also suggests Ellie's presence “foiled” the “mission” of cross-examination, invaded the jury's province, and undermined the presumption of innocence.¹³ He argues the dog's presence “presuppos[ed] to the jury the very victimhood of the complainant.” ¹⁴ And because dogs react to human stress,¹⁵ he suggests the jury was “free to interpret the dog's signals as testimony from an unsworn witness that the victim is upset because he or she is telling the truth.” ¹⁶

¶ 18 Again, we disagree. The confrontation clause is normally satisfied “if defense counsel receives wide latitude at trial to question the witnesses.” ¹⁷ The defense engaged in a lengthy and thorough cross-examination of Lare,¹⁸ highlighting his memory problems and eliciting several inconsistent statements.¹⁹ There is no indication that the dog compromised Dye's right of cross-examination.

¶ 19 Dye also contends that Lare may have been biased or more suggestible because Ellie belonged to the prosecutor's office. He argues this created “the sense that the State had orchestrated the appearance of Ellie ... in order to engender sympathy for the complainant.” ²⁰

¶ 20 Dye relies on State v. Aponte.²¹ There, the Connecticut Supreme Court held the prosecutor committed misconduct by giving a child witness a stuffed dinosaur to hold during her testimony. Aponte acknowledged that “had the victim simply brought a favorite object from home, there would have been no basis for objection.” ²² The court held that the misconduct was compounded when the trial court refused to permit cross-examination to explore the child's possible bias or suggestibility, and the combination of the misconduct and the restriction on the defendant's ability to expose the witness's suggestibility deprived the defendant of due process. ²³

¶ 21 In this case, the prosecutor did not give Lare a gift and there is no allegation of misconduct. Further, even if Ellie's temporary companionship were sufficient to create bias or suggestibility, Dye does not allege any restriction on his ability to expose the same during cross-examination. Aponte is inapposite.

¶ 22 Finally, Dye argues that by failing to make specific findings weighing Lare's need for emotional support against the possibility of prejudice, the court violated his right to due process. Because of Lare's developmental disabilities, both parties analogize to cases involving child witnesses. These cases provide abundant authority that a court may allow a child witness to hold a comfort item during testimony where the witness's need for emotional support outweighs the possibility of prejudice.²⁴

¶ 23 Here, the necessary balancing is implicit in the court's ruling. The court did not think Ellie would distract the jury, and observed that the dog was “very unobtrusive [and] will just simply be next to the individual, not be laying in his lap.” ²⁵ Given Lare's disabilities and “significant emotional trauma,” the court concluded Ellie's presence was appropriate.²⁶ Dye's only other specific objection was with respect to his dog allergy, which the court promised to accommodate. There was no error.

¶ 24 In any event, there was no prejudice. The court instructed the jury not to “make any assumptions or draw any conclusions based on the presence of this service dog.” ²⁷ Juries are presumed to follow the court's instructions absent evidence to the contrary.²⁸ And the jury did not find that Lare was a...